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Court recognises female genital mutilation as grounds for asylum

Provisional ruling bans deportation of woman to Kenya

Appeals court provisionally accepts Kenyan woman's plea and says deportation of her and her children to Kenya by Greece could harm them irreparably, exposing them to physical abuse in the form of female genital mutilation

A traditional surgeon holds razor blades before carrying out female genital mutilation on teenage girls in Uganda in 2008 (Photo: Reuters) A traditional surgeon holds razor blades before carrying out female genital mutilation on teenage girls in Uganda in 2008 (Photo: Reuters) In a landmark ruling, an Athens court has placed a temporary hold on the deportation of a Kenyan woman and her three underage children because they face female genital mutilation (FGM) if they return to her country.

The Athens Administrative Appeals Court based its decision on the 1951 Geneva convention. In 2009, the UN high commissioner for refugees noted the threat of FGM was a legitimate factor for granting asylum to women or their children.

The Kenyan national arrived in Greece on 3 September 2002 in order, as she said, to get financial help for a foot operation on one of her children. She applied for asylum in Attica for herself and her children, aged 13, 5 and 3. The youngest is the child of an American citizen.

In her application, she said she did not want to return to her country because she belongs to the Kikuyu tribe, which practices FGM, and she could also be subjected to the same by Mungiki, a banned terrorist organisation in Kenya.

An estimated 100 to 140 million girls and women worldwide have been subjected to FGM. In Africa alone, it is thought that three million girls may undergo FGM every year, which can cause serious physical and psychological harm. The practice has been internationally condemned as a gross human rights abuse. There are several types of FGM. The most serious is called infibulation and involves the partial or total removal of the genitalia and stitching/narrowing of the vaginal opening. Clitoridectomy is the partial/total removal of the clitoris and/or hood. Excision is the partial/total removal of the clitoris and labia. FGM also includes all other harmful practices to the genitalia like pricking, piercing, scraping and cauterising.

Her asylum application was rejected on the grounds that she and her children did not meet the Geneva convention’s classification conditions for refugee status.

The woman then applied to a relevant justice ministry committee to ask for a review of her case in order to be issued international protection. The committee again rejected her application on the grounds that she did not submit “incontrovertible evidence proving that her fear due to the threat of being subjected to FGM by the Mungiki organisation can be seen as justifiable and substantiated on objective facts, in order to conclude that there is immediate and unavoidable threat to her life or physical safety if she returns to her country of origin”.

The ministry's committee also concluded that “there is no provable danger that upon her return to her country she would undergo severe harm consisting of a death sentence or torture, as in Kenya and especially Nairobi (her last recorded residence), there are no conditions of international or domestic armed conflict that would lead to the conjecture of serious injury due to indiscriminately practiced violence”.

It concluded that the woman and her children did not meet conditions related to refugee or additional protection status according to standing laws, but it said all four fulfilled conditions that allowed residence permits to be issued for humanitarian reasons. It thus referred the case to the administrative court.

The woman took recourse to the courts on the grounds that if she and her children returned to Kenya they would be tortured or treated inhumanely and that her children would be either conscripted into criminal organisations, abducted by them or be persecuted - in the youngest's case - for being the child of an American citizen.

The court accepted her plea on a temporary basis and said their return to Kenya by Greek authorities could harm them irreparably, exposing them to physical abuse. It suspended the justice ministry committee's decision until the court could give a final ruling and ordered state authorities to abstain from any act that would result in the forced exit and repatriation to Kenya of the woman and her children.

The court also ordered that if the special document certifying she had applied for asylum has been removed by authorities, it must be restored and extended in date if expired.


What is female genital mutilation (FGM)?

* An estimated 100 to 140 million girls and women worldwide have been subjected to FGM. In Africa alone, it is thought that three million girls may undergo FGM every year.

* FGM is prevalent in 27 African countries and parts of the Middle East and Asia, notably Yemen, Iraqi Kurdistan and Indonesia. It is also found in industrialised countries among some immigrant populations. Countries where the practice is near universal include Somalia, Sudan, Eritrea, Djibouti, Egypt, Sierra Leone, Mali and Guinea.

* There are several types of FGM. The most serious is called infibulation and involves the partial or total removal of the genitalia and stitching/narrowing of the vaginal opening. Clitoridectomy is the partial/total removal of the clitoris and/or hood. Excision is the partial/total removal of the clitoris and labia. FGM also includes all other harmful practices to the genitalia like pricking, piercing, scraping and cauterising.

* FGM is mostly carried out between infancy and 15. The procedure is arranged by the women in the family.

* It is usually performed by traditional cutters who may use anything from razor blades to scissors, broken glass or tin can lids. However there is an increasing trend in some countries like Indonesia for hospitals to perform FGM.

* FGM is found among Muslim and Christian communities. It is also practised by followers of some indigenous religions. People often believe FGM is required by religion, but it is not mentioned in the Koran or Bible.

* Reasons for carrying out FGM vary. Some communities believe it preserves a girl's virginity, prevents promiscuity after marriage and increases male sexual pleasure. Parents say it is an act of love because it purifies the girl, brings her status and prepares her for marriage. It is also mistakenly believed to enhance fertility and make childbirth safer for the baby. Girls who have not been cut are ostracised in some communities.

* FGM can cause severe bleeding, pain, shock, recurrent urinary tract infections, cysts and infertility. It also increases the risk of labour complications, maternal mortality and newborn deaths. The procedure itself can prove fatal.

* A study in Iraq found girls who had undergone FGM were more prone to post-traumatic stress disorders, depression and other psychological disturbances than girls who hadn't. Campaigners liken the psychological effects to those suffered by rape victims. The silence surrounding FGM may also compound the girl's sense of isolation.

* FGM has been banned by the majority of African countries where it is practised as well as many industrialised countries. But enforcement of the law is usually weak and prosecutions are rare.

* FGM violates a plethora of international treaties which many FGM-practising countries have agreed to. These include the UN Convention on the Elimination of All Forms of Discrimination against Women, the UN Convention on the Rights of the Child and the Maputo Protocol on women's rights adopted by the African Union.
 

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